Safeguarding Australia’s Military Secrets Act – Implications for defence industry – Terrorism, Homeland Security & Defence

The Defence Amendment (Safeguarding Australia’s Military
Secrets) Act 2024 (Cth) (SAMS Act) commenced on 6
May 2024 and is aimed at ensuring Australia’s military secrets
are not passed on to foreign militaries

Overview of the SAMS Act

The SAMS Act’s primary purpose is to protect Australia’s
military techniques, tactics and procedures. It takes a
prescriptive approach by implementing new restrictions and
penalties on Australian citizens and permanent residents with
Defence knowledge who wish to or currently do work for foreign
governments and military organisations.

This, combined with the recent major changes to the Defence
Trade Controls Act 2012 (Cth) (DTC Act),
emphasise the need for defence industry organisations and personnel
to seek appropriate advice about their security and trade controls
obligations.

Major Changes to Defence Act 1903 (Cth)

The SAMS Act inserts a new Part IXAA into the Defence Act
1903 (Cth) and creates an offence for former defence staff
members, known as ‘foreign work restricted individuals’, to
perform work for, or on behalf of, a military organisation or
government body of a relevant foreign country.¹ A
relevant foreign country is a foreign country determined by the
Minister in a legislative instrument to not be relevant for the
purposes of the SAMS Act. In the same manner, the Minister
can also specify classes of former defence staff members deemed not
to need foreign work restrictions.

The SAMS Act creates a further offence for any citizen or
permanent resident of Australia to provide training to, or on
behalf of, a military organisation or government body of a relevant
foreign country where the training relates to ‘goods, software
or technology within the scope of Part 1 of the Defence and
Strategic Goods List’ or to military tactics, techniques or
procedures.² Part 1 of the Defence and Strategic Goods
List covers ‘goods and technologies designed or adapted for
use by armed forces or goods that are inherently
lethal‘.³ These offences carry a penalty of 20
years imprisonment, however a number of exceptions are
available.⁴

Foreign Work Authorisations

One such exception is where the individual has been granted a
foreign work authorisation for the work or training being
provided.⁵

An individual wishing to obtain a foreign work authorisation
must submit a request to the Minister in the prescribed
form.⁶ The Minister must then, as soon as reasonably
practicable, grant or refuse the request in
writing.⁷

Before approval can be granted, the Minister is required to
consider a number of factors including, but not limited to:

• the kind of work and role performed by an individual when they
  were a defence staff member;




• any other kind of work performed by the individual other than
  as a defence staff member;




• the length of time that the individual was a defence staff
  member and the kinds of information accessed;




• the particular foreign military organisation or government body
  for which, or on behalf of which, the individual would perform the
  work if the authorisation was granted; and




• the kind of training or work the individual would provide or
  perform if the authorisation was granted.⁸

Importantly, the SAMS Act provides that an authorisation request
must be refused if the Minister ‘reasonably believes that
the performance of the work, or the provision of the training, by
the individual would prejudice the security, defence or
international relations of Australia.‘⁹ Any
authorisation granted must not be for a period longer than 3
years.¹⁰

The SAMS Act empowers the Minister to impose conditions on an
authorisation and to cancel, suspend or vary an authorisation
subject to certain criteria being satisfied.¹¹ The
Minister can also delegate their functions and powers to
highly-ranked defence members.¹²

Section 115K does permit an individual to apply for a review of
the decision within 28 days after notification.¹³ This
only applies to “reviewable decisions”, such as:

• A refusal to grant an individual an authorisation;




• A decision to grant an authorisation different to what was
  requested or with conditions;




• A decision to, or a refusal to, vary, suspend or cancel an
  authorisation.¹⁴

Other Exceptions

Other exceptions to the offences include where the work or
training is:

• authorised by a written agreement to which the Commonwealth is
  a party;




• in the course of the individual’s employment or engagement
  by the Commonwealth;




• solely in the course of the individual’s service in any
  capacity in or with any armed force and there is a declaration
  under subsection 119.8(1) of the Criminal Code; or




• solely or primarily for the purposes of providing humanitarian
  aid or performing an official duty for the United Nations or the
  International Committee of the Red Cross.¹⁵

Criminal Code

Finally, the SAMS Act makes amendments to the Criminal
Code to clarify that the offence in relation to military-style
training involving a foreign government does not apply to an
individual with a foreign work authorisation, to a class of
individuals who are not foreign work individuals, and to countries
that are not relevant foreign countries.¹⁶

As referenced above, the SAMS Act introduces new criminal
penalties for violations, such as:

• a maximum of 20 years imprisonment if a foreign work restricted
  individual works for, or on behalf of, a military organisation or
  government body of a relevant foreign country without an
  exception;




• a failure to comply with conditions of foreign work
  authorisation can lead to a maximum sentence of 5 years
  imprisonment; and




• a maximum penalty of 20 years imprisonment where an Australian
  citizen / permanent resident (who is not authorised) provides
  training to, or on behalf of, a military organisation or government
  body of a foreign country in relation to goods within Part 1 of the
  DSGL, or military training.

Conclusion

With the advent of AUKUS, Australia’s defence legislative
framework is in a period of significant upheaval. The SAMS Act is
only one aspect of the legislative and regulatory change that the
defence industry, although a pivotal one.

Footnotes

¹ Defence Amendment (Safeguarding
Australia’s Military Secrets) Act 2024 (Cth) ss 114,
115A(1) (“SAMS Act“).

² Ibid s 115B(1).

³ Defence and Strategic Goods List
2021 (Cth) pt 1A div 2.

⁴ SAMS Act (n 1) ss 115A(1),
115B(1).

⁵ Ibid ss 115A(2), 115B(2).

⁶ Ibid ss 115C(1), (3).

⁷ Ibid s 115C(4).

⁸ Ibid ss 115C(5)-(6).

⁹ Ibid s 115C(8).

¹⁰ Ibid s 115C(10)(a).

¹¹ Ibid ss 115C(12), 115E-115H.

¹² Ibid s 115N.

¹³ Ibid s 115K.

¹⁴ Ibid s 115K(9).

¹⁵ Ibid ss 115A(3)-(6),
115B(3)-(6).

¹⁶ Ibid sch 2.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.